Created on Thursday, 07 May 2015 01:00 | Written by Saundra Sorenson
Opponents of a plan for a mixed-use development on the Wizer Block in downtown Lake Oswego are taking their fight to the Oregon Court of Appeals.
Attorney Greg Hathaway confirmed Tuesday afternoon that he had filed a petition for judicial review on behalf of the Evergreen Neighborhood Association and Save Our Village.
A third group — LO 138 LLC, which represents Lake View Village — participated with the others in taking the case to the state Land Use Board of Appeals, but opted not to participate further.
Hathaway, who represented both Save Our Village and LO 138 LLC before LUBA, will be working with attorney Daniel Kearns as the case moves forward. Kearns was hired by the Evergreen Neighborhood Association.
“We’re of the mind that the LUBA decision has committed an error, making (our challenge) very justifiable,” Hathaway told The Review on Tuesday.
In March, Hathaway argued before LUBA that the City Council was wrong when it voted to allow a 290,000-square-foot development at the corner of First Street and A Avenue. The city’s Development Review Commission had rejected the proposal a month earlier.
In its decision, LUBA concluded that “the City Council’s interpretation of the Community Development Code easily qualifies as a plausible interpretation” and that “petitioners’ proffered interpretation to the contrary is inconsistent” with the code.
But Hathaway says LUBA did not address a key point in its review.
“What’s really at stake is how underlying policies of the city apply,” Hathaway said. “In the Urban Design Plan and the East End Redevelopment Plan, the city clearly requires any development on Block 137 to be ‘village scale,’ to be complementary and to be compatible with adjacent development.”
He said state law — specifically ORS 197.829(1) — instructs LUBA in how to “grant deference to the city’s interpretation.” Under the statute, Hathaway said, LUBA must examine whether the Lake Oswego City Council erred in approving the Wizer Block development using four criteria.
Hathaway’s argument concerns the first three parts of that criteria, which require LUBA to consider if the council’s decision:
“(a) is inconsistent with the express language of the comprehensive plan or land use regulation;
(b) is inconsistent with the purpose for the comprehensive plan or land use regulation;
(c) is inconsistent with the underlying policy that provides the basis for the comprehensive plan or land use regulation.”
“LUBA never addressed our key issue: whether the interpretation by the city was consistent with the underlying policies of the Urban Design Plan and the East End Redevelopment Plan,” Hathaway said. “By statute, they’re required to address it.”
Hathaway said the city never conducted an evaluation to ensure that the proposed development was compatible with Lake View Village and the mixed-use development on Block 136.
“The city’s interpretation does not provide assurances to the community that the Wizer development is truly of village scale in comparison with its downtown surroundings,” he said. “It is our position that the Wizer development is too massive and out of scale with its surroundings.”
Mayor Kent Studebaker said Wednesday that he was disappointed by opponents’ decision to file the appeal.
“I recognize their right to file,” Studebaker said, “but I’m disappointed. The LUBA opinion was strong, and I would’ve thought that would’ve settled that. But if they want to spend their money on that, they certainly have the right to.”
Jim Bolland, co-chair of the Lake Oswego Neighborhood Action Coalition, said the Evergreen Neighborhood Association board voted April 28 to keep the appeal alive.
“It’s been reviewed by a couple of different attorneys, and it’s very clear we have a viable case going forward,” Bolland told The Review on Tuesday. “We would not proceed with any kind of case that we didn’t feel was on very solid ground.
“It’s very important to note,” he added, “that in the context of our pretty shocking vacancy rate with retail downtown, this project is going to exacerbate the retailers that are fleeing. It’s going to be really bad for our downtown’s viability in the long term.”
Neither Bolland nor Hathaway would discuss how the two groups plan to finance the appeal. Bolland did refer to a “grassroots” fundraising effort, and the Save Our Village website currently features a general call for donations and a link to PayPal.
“It’s the way we always fund things — different people step up to the plate,” Bolland said. “At our LONAC meeting on Saturday, we walked away with $2,500” in donations toward the appeal “from people who have not changed their opinion.”
“All I know is that we’re prepared to go forward,” Hathaway said. “Our clients are willing to pay, and everyone is comfortable with that relationship.”
Bolland criticized a request last week from Redevelopment Director Brant Williams to the Citizens Budget Committee to set aside more city funds for the Wizer Block project. But Williams said Tuesday that the request was completely legitimate.
“We have a development agreement with the developer,” Williams said. “He’s obligated to set aside 135 public parking spaces and (establish) a public easement through the private property. Those are the two big elements. And in return, the Redevelopment Agency will contribute financially to the project.”
That contribution includes covering all associated development and permit fees, Williams said, which were estimated to be between $4.7 million and $5.3 million.
“On top of that, we’re contributing $749,000 (in East End Redevelopment District funds) to the project for overall construction,” Williams said. “The LORA board felt comfortable doing that, given that we’ll get primarily public parking spaces and public access easements to the big parcel there.”
Kessi’s proposal for the Wizer Block calls for three four-story buildings, with 207 apartments and about 36,000 square feet of retail space. Demolition of the existing Wizer building is tentatively scheduled to begin in September, Kessi has said, followed by excavation for underground parking.
The entire $93 million development will take about 22 months to complete, with a tentative completion date of July 2017. Planning will continue while the appeal winds its way through the court, Kessi said Tuesday.
“LUBA did not waiver in its rejection of the opposition’s appeal,” he told The Review. “It issued a strong and well-reasoned approval of the City Council decision. We are confident in that ruling and in the sound judgment of the Court of Appeals.
“Our company is in the final planning stages,” he added, “and ready to go through the final permitting process” for the Wizer Block.
Opponents of those plans now have 21 days to file a brief with the appeals court. The city and Kessi’s attorneys will then have 21 days to respond; once those briefs are filed, the court typically hears oral arguments within 49 days.
“The opposition has said that they will take this all the way to the Supreme Court,” Kessi said. “But that seems more about delaying the project than the merits of the decisions about the project made by City Council and strongly affirmed by LUBA.”
Contact Saundra Sorenson at 503-636-1281 ext. 107 or firstname.lastname@example.org.
Article originally posted with the Lake Review @ http://www.pamplinmedia.com/pt/9-news/259307-130987-wizer-block-foes-take-fight-to-court-of-appeals